Gulf Group General Enterprises Co. W.L.L. v. United States
2011 U.S. Claims LEXIS 764
| Fed. Cl. | 2011Background
- Gulf Group sues Army on terminated contracts and retains Mr. Perry as an expert government contract consultant.
- Defendant moves in limine to exclude Perry’s expert report as legal conclusions invading the court’s province.
- Perry, a retired Army Colonel with extensive contracting experience, prepared an undated report criticizing termination for convenience decisions.
- Gulf Group files a supplemental report to address perceived legal conclusions; court notes risk Perry may offer impermissible legal analysis.
- Regulations cited include 32 C.F.R. § 516.49, § 516.52 and 5 U.S.C. § 301, suggesting Touhy-based barriers but not applying as absolute barriers here.
- Court denies the motion in limine to exclude Perry’s testimony at this time, allowing potential testimony subject to objections at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perry’s testimony is admissible under Rule 702 | Gulf argues Perry’s opinions aid understanding, not pure legal conclusions. | Army argues Perry offers legal conclusions infringing judicial role. | Denied; Perry may testify subject to objections. |
| Touhy regulations bar former DA personnel from testifying | Gulf contends Touhy permits some testimony with authorization. | Army asserts absolute bar under Touhy and 32 C.F.R. §§ 516.49, 516.52. | Not an absolute bar; court retains control and may permit testimony with limitations. |
| Post-employment restrictions on Perry as a former Army officer | Perry’s testimony complies with post-employment rules; no violation shown. | 18 U.S.C. § 207 and 5 C.F.R. § 2641.301(f) prohibit testimony in such matters absent safeguards. | No evidence of violation; testimony allowed pending trial-specific determinations. |
| Judicial control of evidence in a non-jury (judge-only) trial | Court retains ultimate authority over admissibility; separation of powers not breached here. |
Key Cases Cited
- Stobie Creek Invs., LLC v. United States, 81 Fed.Cl. 358 (2008) (Rule 702; avoid legal conclusions; testimony must assist the fact-finder)
- Stobie Creek Invs., LLC v. United States, 608 F.3d 1366 (Fed.Cir.2010) (affirmed exclusion of legal-analytic testimony)
- Rumsfeld v. United Techs. Corp., 315 F.3d 1361 (Fed.Cir. 2003) (interpretation of regulations is legal issue; expert testimony on such issues limited)
- Alexander v. FBI, 186 F.R.D. 66 (D.D.C. 1998) (Touhy-type regulations differentiate from government-contract disputes)
- McElya v. Sterling Medical, Inc., 129 F.R.D. 510 (W.D. Tenn. 1990) (Navy-like Touhy regulations deemed non-binding in some federal actions)
- Soriano-Jarquin v. DHS, 492 F.3d 495 (4th Cir. 2007) (Touhy regulations applied to restrict testimony absent authorization)
- United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (Touhy governs agency testimony in private litigation when government not party)